Politics|Trump Retreats on Separating Families, but Thousands May Remain Apart

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Trump Retreats on Separating Families, but Thousands May Remain Apart

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President Trump has faced immense political pressure to end the separation of migrant families at the border. His executive order will seek to find ways to hold parents and children together.CreditCreditAl Drago for The New York Times

WASHINGTON — President Trump caved to enormous political pressure on Wednesday and signed an executive order meant to end the separation of families at the border by detaining parents and children together for an indefinite period.

“We’re going to have strong — very strong — borders, but we are going to keep the families together,” Mr. Trump said as he signed the order in the Oval Office. “I didn’t like the sight or the feeling of families being separated.”

But ending the practice of separating families still faces legal and practical obstacles. A federal judge could refuse to give the Trump administration the authority it wants to hold families in custody for more than 20 days, which is the current limit because of a 1997 court order.

And the president’s order does nothing to address the plight of the more than 2,300 children who have already been separated from their parents under the president’s “zero tolerance” policy. Federal officials initially said those children would not be immediately reunited with their families while the adults remain in federal custody during their immigration proceedings.

“There will not be a grandfathering of existing cases,” said Kenneth Wolfe, a spokesman for the Administration for Children and Families, a division of the Department of Health and Human Services. Mr. Wolfe said the decision about the children was made by the White House.

But later Wednesday evening, Brian Marriott, the senior director of communications for the agency, said that Mr. Wolfe had “misspoke” and insisted that “it is still very early, and we are awaiting further guidance on the matter.” Mr. Marriott said that “reunification is always the goal” and that the agency “is working toward that” for the children separated from their families because of Mr. Trump’s policy.

His statement left open the possibility, though, that the children could be connected with other family members or “appropriate” sponsors living in the United States, not necessarily the parent they were separated from at the border.

The president signed the executive order days after he said that the only way to end the division of families was through congressional action because “you can’t do it through an executive order.” But he changed his mind after a barrage of criticism from Democrats, activists, members of his own party and even his wife and eldest daughter, who privately told him the policy was wrong.

Mr. Trump had previously been told by advisers that there was no way for the policy to be changed through an executive order, and it was unclear what the genesis of the measure he signed was. But the White House counsel, Donald F. McGahn II, had concerns about moving ahead with an executive order that would face an uphill battle in the courts.

The president’s chief of staff, John F. Kelly, did not voice major objections, according to a White House official. The move also helped alleviate pressure on Kirstjen Nielsen, Mr. Kelly’s protégée and handpicked successor at the Department of Homeland Security.

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Undocumented migrants waiting for asylum hearings on Wednesday outside the port of entry in Tijuana, Mexico.CreditSandy Huffaker for The New York Times

Stories of children being taken from their parents, audio of wailing toddlers and images of teenagers in cagelike detention facilities had exploded into a full-blown political crisis for Mr. Trump and congressional Republicans, who were desperate for a response to those who have called the practice “inhumane,” “cruel” and “evil.”

The president’s four-page order says that officials will continue to criminally prosecute everyone who crosses the border illegally, but will seek to find or build facilities that can hold families — parents and children together — instead of separating them while their legal cases are considered by the courts.

But the action raised new questions that White House officials did not immediately answer. The order does not say where the families would be detained. And it does not say whether children will continue to be separated from their parents while the facilities to hold them are located or built.

Officials on a White House conference call said they could not answer those questions.

Justice Department officials said the legal authority to end family separation relies on a request they will make in the coming days to Judge Dolly M. Gee of the Federal District Court in Los Angeles, the daughter of immigrants from China who was appointed by President Barack Obama. She oversees a 1997 consent decree, known as the Flores settlement, which prohibits immigration authorities from keeping children in detention, even if they are with their parents, for more than 20 days.

The 1997 case imposes legal constraints on the proper treatment of children in government custody, which stopped Mr. Obama after his administration began detaining families together during a similar flood of illegal immigration several years ago.

“It’s on Judge Gee,” said Gene Hamilton, the counselor to Attorney General Jeff Sessions. “Are we going to be able to detain alien families together or are we not?”

Mr. Hamilton said the judge’s previous rulings prohibiting extended detentions of families has “put this executive branch into an untenable position.”

He said that the president’s order is a stopgap measure that could be fixed permanently if Congress passes legislation to overhaul the immigration system. While the House is scheduled to vote Thursday on two competing immigration bills, the president’s decision appeared to lessen the urgency for lawmakers to address the issue.

With Republicans in the House and Senate pursuing different approaches to put a stop to the heart-wrenching scenes at the border, no legislative breakthrough seemed imminent.

Republicans in the Senate have proposed narrow legislation that would end the practice, while House Republican leaders are focused on a broader bill, though its passage was in doubt on the eve of Thursday’s vote.

In the meantime, legal experts said it seems highly unlikely that the courts will agree to the request by the Trump administration. That would mean the president is almost certain to face an immediate legal challenge from immigration activists if the government tries to detain families for more than the 20-day limit.

“I don’t think anyone wants to see little children detained for long periods of time,” said Lee Gelernt of the American Civil Liberties Union, which challenged the Trump administration’s separation of families. “If they start detaining families and kids in tents or other places, I think you will see immediate lawsuits.”

Kevin Appleby, a senior director at the Center for Migration Studies, predicted such a challenge.

Advocates said officials should jail only those immigrants who have committed other crimes, are a flight risk or pose a danger to others.

“It is outrageous that the president is pushing the criminal detention of innocent children as a solution to his own evil act,” Mr. Appleby said. “The best solution would be releasing families to sponsors or placing them in community-based alternatives to detention programs, which are less expensive and much more humane.”

Until Wednesday, Mr. Trump had refused to simply end his government’s zero-tolerance policy that was announced last month and led to the separation of more than 2,300 children from their parents, saying that the alternative would be to fling open the country’s borders and allow immigrants who cross the border illegally to remain in the United States.

But the president, furious about the pummeling he has taken in the news media in recent days, began casting about for a solution to the politically damaging situation, people familiar with his thinking said.

He made his announcement flanked by Vice President Mike Pence and Kirstjen Nielsen, the secretary of homeland security, and vowed not to relent in his administration’s prosecution of people trying to enter the country illegally.

“We are keeping a very powerful border, and it continues to be a zero tolerance,” Mr. Trump said. “We have zero tolerance for people that enter our country illegally.”

But he added, “The border’s just as tough, but we do want to keep families together.”

In signing the order to end the separation of families, Mr. Trump also abandoned the positions that he and his allies had stuck to for weeks: that Democrats were to blame for the wrenching scenes of kids being torn from their parents, and that the administration was helpless to fix the problem without action by Congress to overhaul immigration laws.

In effect, though, the president was caught between his messaging and the likelihood of inaction on Capitol Hill. That became clearer on Tuesday when Republicans in the Senate and House moved in different directions on confronting the family separation issue.

Mr. Trump acknowledged his position during remarks to reporters before his announcement on Wednesday.

“The dilemma is that if you’re weak, if you’re weak, which some people would like you to be. If you are really, really pathetically weak, the country’s going to be overrun with millions of people,” Mr. Trump said. “And if you’re strong, then you don’t have any heart. That’s a tough dilemma. Perhaps I’d rather be strong.”

In addition to the public condemnations of his policy — including by Pope Francis on Wednesday — Mr. Trump had been lectured by the first lady, Melania Trump, and Ivanka Trump, his eldest daughter, according to White House officials.

Melania Trump had been pushing her husband about the family separation policy from the beginning, an official said, arguing that there was a middle way between opening America’s borders and tearing children away from their parents. Separating children from their mother and father, she told him, is wrong.

Ivanka Trump and her husband, Jared Kushner, were also pressing the president to find a way to end the political crisis caused by the family separations at the border, according to people familiar with their conversations.

But it is not clear what the political damage may be to Mr. Trump from having taken actions that he repeatedly said he was not allowed to do.

As recently as Tuesday, in a speech to the National Federation of Independent Business, the president insisted that there were “only two options: totally open borders or criminal prosecution for law breaking.”

“And you want to be able to do that,” he said. “We don’t want people pouring into our country.”

The president has also opened himself up to charges of hypocrisy. During the 2016 presidential campaign, Mr. Trump repeatedly slammed Mr. Obama for abusing his executive authority when he issued an executive order to protect the young immigrants known as Dreamers.

As a candidate, Mr. Trump said he would use executive orders sparingly, adding that “Obama, because he couldn’t get anybody to agree with him, he starts signing them like they’re butter. So I want to do away with executive orders for the most part.”

Mr. Obama, whose administration also grappled with how to handle massive flows of illegal immigrants from Central America, has remained mostly silent during the controversy over the separation of children from their parents at the border. But in a Facebook post on Wednesday, Mr. Obama denounced the lack of morality in a policy that leads to the kinds of scenes that have played out across television screens during the past several weeks.

“To watch those families broken apart in real time puts to us a very simple question: are we a nation that accepts the cruelty of ripping children from their parents’ arms, or are we a nation that values families, and works to keep them together?” Mr. Obama wrote. “Do we look away, or do we choose to see something of ourselves and our children?”